Strnad v. Garvin

Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered September 5, 2008 in actions for property damage. The order denied the motion of defendant Paul J. Garvin for summary judgment in action Nos. 1 and 2. It is hereby ordered that the order so appealed from is reversed on the law without costs, the motion is granted and the complaint in action No. 1 and the complaint in action No. 2 against defendant Paul J. Garvin are dismissed. Memorandum: Plaintiffs commenced these actions seeking damages sustained as the result of a fire that occurred on property owned by Paul J. Garvin, the defendant in action No. 1 and a defendant in action No. 2 (defendant). The plaintiff in action No. 1 owned property in proximity to defendant’s property, and the plaintiff in action No. 2 owned aerial cables adjacent to the property owned by defendant. We conclude that Supreme Court erred in denying the motion of defendant for summary judgment dismissing the complaint in action No. 1, and for summary judgment dismissing the complaint in action No. 2 against him. In support of the motion, defendant submitted an expert’s affidavit and report, the statement of a tenant who had been smoking in the building prior to the fire, and a Sheriffs office memorandum. Defendant thereby met his initial burden of establishing that his acts or omissions did not cause the fire but, rather, that the tenant’s careless smoking caused the fire (see Delgado v New York City Hous. Auth., 51 AD3d 570, 571 [2008], lv denied 11 NY3d 706 [2008]; see also Cataract Metal Finishing, Inc. v City of Niagara Falls, 31 AD3d 1129, 1130 [2006]). Adthough plaintiffs raised an issue of fact whether the smoke detectors in the building were inoperable at the time of the fire, we nevertheless conclude that summary judgment is appropriate because plaintiffs failed to raise a triable issue of fact whether the alleged absence of operable smoke detectors was a substantial factor in causing the fire to spread and thus to damage their properties (see State Farm Ins. Co. v Nichols, 34 AD3d 994, 996 [2006]). 1231 All concur except Fahey and Green, JJ., who dissent and vote to affirm in the following memorandum.